Local 3048, American Federation of Government Employees,
AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses
Panel (Panel) to consider a negotiation impasse between it and the Department of
Justice, Federal Bureau of Prisons (BOP), Federal Correctional Complex, Lompoc,
California (Employer) resulting from an agency determination not to establish
either of two Union-proposed 5-4/9 compressed work schedules (CWS) under the
Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5
U.S.C. §§ 6120-6133.(1)

Following investigation of the request for assistance, the
Panel determined that the impasse should be resolved on the basis of an informal
conference, to be preceded by a written supporting statement of position from
each party. Accordingly, the Panel received the written statements and Panel
Chair Bonnie Prouty Castrey conducted an informal conference with the parties on
October 3 and 4, 2000.(2) Although the parties explored settlement possibilities
during the informal conference, the dispute was not resolved. Subsequent to the
informal conference, the parties submitted additional written statements of
position. The Panel has now considered the entire record.

BACKGROUND

At Lompoc, the Employer maintains prison facilities at
three levels of security: maximum, medium, and minimum. It also operates three
factories that provide work for inmates through a self-supporting Government
corporation known as Federal Prison Industries, Inc. (FPI), or UNICOR.(3) Local
3048 represents approximately 439 bargaining-unit employees who are part of a
nationwide, consolidated unit. The 29 to 35 affected bargaining-unit employees
(Union and Employer estimates, respectively) are correctional officers, at
grades WS-4 through -9, responsible for maintaining the security of the UNICOR
facility by supervising inmates who produce furniture and other goods. The
parties’ master collective bargaining agreement (MCBA) is due to expire on
March 8, 2001; their local supplemental agreement is due to expire at the same
time.

Under section 6131(c)(3)
of the Act and section 2472.11(a)(1) of its regulations, the Panel is required
to take final action in favor of the agency head’s (or his delegatee’s)
determination not to establish a CWS if the finding on which the determination
is based is supported by evidence that the schedule is likely to causean
adverse agency impact. If, however, the finding on which the determination is
based is not supported by evidence that the schedule is likely to cause an
adverse impact, under section 2472.11(b) of the Panel’s regulations, the Panel
is to "take whatever final action is appropriate." Where a case, such
as this one, involves the implementation, as opposed to the termination, of a
CWS, and the Panel determines that the employer has not met its statutory
burden, the parties are directed to negotiate over the Union’s proposal.(4)

ISSUE AT IMPASSE

In accordance with section 6131(c)(2)(B) of the Act, the
issue in dispute is whether the findings on which the Employer bases its
determinations not to establish 5-4/9 CWSs under either of the Union’s
alternative proposals (referred to herein as Union Proposal 1 and Union Proposal
2) are supported by evidence that the schedules would be likely to cause an
adverse agency impact.(5)

Under Union Proposal 1, bargaining-unit employees would
work the same "pilot" 5-4/9 schedule at each of the six operations at
the UNICOR facility. On 9-hour days, employees would work from 7 a.m. to 4 p.m.;
on the 8-hour day, they would work from 7 a.m. to 3 p.m. All unit employees on
the schedule and inmates working at UNICOR would take the second Friday of each
2-week pay period off; UNICOR operations would essentially cease on that Friday.
In addition, bargaining-unit employees would work a paid lunch and inmates would
be granted the option of working through lunch. The Warden would have the
discretion to move inmates (the work call) at 7:15 or 7:20 a.m. or if the inmate
call schedule remained the same, staff would use the early morning period to
search for contraband, catch up on paperwork, or attend production meetings. At
the end of the workday, the Warden would have similar discretion to move inmates
at 3:30 p.m. on Monday through Thursdays, and at 2:30 p.m. on the alternate
Friday. The schedule would be subject to review in accordance with Article 18,
Section b of the MCBA and "would not be terminated unless by mutual consent
of both parties."(6)

Union Proposal 2 also concerns a pilot 5-4/9 CWS. The main
difference between Union Proposal 1 and Union Proposal 2 is that RDOs would
occur throughout the week to avoid closing the factory; each department would
have a different off-day pattern which would be rotated among employees on a pay
period or quarterly basis. Other features of Union Proposal 1 would be retained;
these include employees’ working a paid, on-the-clock lunch and inmates having
the option of working through lunch.

POSITIONS OF THE PARTIES

1. The Employer’s Position

The Panel should find that the evidence on which the
Employer bases its determinations not to implement the proposed CWSs for UNICOR
staff establishes that the schedule is likely to cause an adverse agency impact,
as defined under the Act. The proposed schedules, if implemented, would diminish
the level of services furnished to the public and reduce productivity.
Addressing first Union Proposal 1, by closing operations 1 day per pay period,
the proposed schedule would diminish service to the public. In this regard, the
main function of the prison is to provide a "safe and secure environment
for the benefit of Federal inmates, as well as for the general public."
UNICOR is a "useful inmate management program" that promotes this
function by keeping inmates who have a propensity for violent disruption
"occupied in a productive manner." Shutting down the institution would
idle 575 "high security" inmates (approximately one-third of the
inmate population) and might create further unrest since inmates working 1 less
day would earn less. The potential for serious security problems would be
compounded because inmate idleness would coincide with the staff’s alternating
Friday off; on these days, 30 fewer employees would be available to respond to
emergencies. Off-day absences might also leave no one to monitor non-UNICOR
metal detector posts and sensitive areas within factories.

Regarding business office and warehouse functions, they
must be performed every day. These include receiving and issuing merchandise,
paying bills and answering customer or vendor telephone calls, and procuring
overhead and raw material items. The Union’s contention that CWSs are
successful at other UNICOR facilities is unpersuasive because of the small
number of participants: "[O]nly 3 UNICOR operations within institutions are
on CWSs; they involve a total of 16 positions of which 8 directly impact the
manufacturing of articles and supervision of inmates." Moreover, Union
Proposal 1 is similar if not identical to a schedule that was proposed for the
UNICOR facility at Allenwood, Pennsylvania, and rejected under the review
provisions in Article 18 of the MCBA.

With respect to productivity, due to reduced production
time under the schedule, UNICOR would likely lose $119,180.64 per year. The
calculation is based on a "capacity loss of . . . 620 minutes per
month." To overcome such losses, 8 hours of overtime for each inmate and 2
to 8 staff members per department would need to be assigned. Since sustained
profit levels are needed to cover salaries of staff and inmates, the predicted
losses would have an adverse agency impact on productivity. In a similar vein,
any gain from inmates’ working through lunch, if that measure could even be
instituted, would be eliminated by the time-consuming need to clear the factory
during lunch call and to re-issue tools on inmates’ return. Losses could not
be recouped by having inmates work overtime. Generally, inmates do not work
overtime except when production losses occur due to emergency situations
requiring inmates to be confined away from their work areas, and during monthly
financial close-out periods. Furthermore, inmates might be unwilling to make
such work schedule changes. Another disturbing consequence for inmates is the
likelihood that the schedule would disrupt their ability to meet with unit team
counselors and others after work. In addition, inmates’ increased demand for
visitors might overwhelm the inmate visiting schedule on alternate Fridays.

Turning to Union Proposal 2, this 5-4/9 CWS also would
cause an adverse agency impact for many of the same reasons provided above.
Union Proposal 2 would diminish the level of services furnished to the public.
In this regard, the adjustments the Union proposes would not solve the problems
that the schedule will create. Under the schedule, for example, although the
normal staffing ratio is 30 inmates to 1 supervisor, the Sign Factory could be
left with a single correctional officer supervising 100 difficult inmates.(7) Such
a high ratio would raise the likelihood of an assault to an unacceptable level.
Again, even if off days are rotated, staffing shortages caused by RDOs would
affect manning metal detectors, monitoring secure areas within factories, and
covering for those on leave or attending training. Certain departments such as
the Print Plant and the Business Office have small, specialized staffs that
cannot be spared on a regular basis. Some of these employees have computer
access that cannot be transferred to substitutes. As a result, some departments
might have to be shut down on some days or be left dangerously shorthanded. At
the Warehouse, daily deliveries and pickups preclude the use of CWSs, even with
rotated off days. In addition, the work call, which now occurs at 7:30 a.m., if
changed to permit inmates to begin work earlier at the Cable Factory, would
double the work of moving inmates in the morning. Similar difficulties would be
experienced if inmates’ afternoon schedules were extended because inmates must
be in housing units in time for the 4 p.m. count.(8) Furthermore, inmate movement
must not be held too early or too late because it is impermissible after dark.
Finally, with regard to productivity in the Cable Factory, 1 hour of
non-productive time per day under Union Proposal 2 could result in a $62,400
annual loss.

2.

The Union’s Position

The Panel should find that the evidence the Employer
offers to establish the likely adverse agency impact of its proposals is
unconvincing. Regarding service to the public, the Employer currently is able to
control inmates on weekends, holidays, and after the normal duty day, when they
are idle and staffing levels are at their lowest. Staffing levels on proposed
Friday off days would be higher than on weekend and holiday periods because
other departmental staff would still be at work on Fridays. Furthermore,
"alternative Fridays were chosen due to the large amount of inmate workers
who are participating in other institutional programs, i.e., religious
services, educational services, drug/alcohol/parenting programs, health
services, scheduled/unscheduled appointments, and monthly staff re-calls that
fall on Fridays."

As to manufacturing output, the Employer’s estimates of
lost productivity are "pure speculation given no actual trial period
data." Production might actually increase by 3,321 hours. In this
connection, Union Proposal 1 gives the Employer the "flexibility of
increasing inmate hours and pay while keeping the same [staffing] level and a
possibility of increased production in UNICOR factories." Day-to-day
observations by employees who supervise inmates suggest that hours routinely
lost from "inmate absences, staff re-calls, short-term institution
lock-downs, special counts, and liberal leave days, do not . . . change the
production output or sales projections of the factories."

The Employer's contentions
of adverse agency impact regarding Union Proposal 2 should also be found
insufficient to meet the burden of proof under the Act. Union Proposal 2
contains a number of flexible measures that address the Employer’s concerns
about sufficient coverage in each department.(9)For example, to meet the Employer’s
concern that business office and warehouse functions be performed every day,
Union Proposal 2 provides that these staffs have alternate Fridays off. By
rotating employees’ off days, the Employer’s major objection to closing down
1 day per pay period, is resolved. Moreover, the Employer’s plan to attend job
fairs in October and November might ease staffing shortages that otherwise make
the schedule more difficult to manage. Other flexible measures suggested include
slight modifications to the inmate movement schedule that would have
"little or no impact on institution operations."(10) Employees on training
or week-long assignments would return to a normal 8-hour schedule for that pay
period.

Another reason for concluding that the Employer’s
concerns are overblown is the fact that over 125 CWSs are in place throughout
the BOP. Three of these are at UNICOR operations located elsewhere,
demonstrating that a similar schedule can work at Lompoc. At FCI Allenwood,
Pennsylvania, for example, employees "work a compressed work schedule which
has been approved [through the procedure in Article 18 of the MCBA] and is very
similar to the partial schedule of the Cable Factory department at Lompoc.(11)"
In addition, bargaining-unit employees are interested in working the schedule.
Implementation of the CWS would serve to "improve morale, decrease sick
leave, further family ties, and allow staff to better schedule personal
appointments." The availability of a CWS would also enhance retention and
recruitment. Currently, staffing levels are low because of the community’s
high cost of living, higher pay in the civilian sector, and the nature of the
job, whose other benefits are minimal. During a trial period, the parties would
be able to gather data jointly to evaluate the impact of the schedule.

CONCLUSIONS

Under section 6131(c)(2) of the Act, the Panel is required
to take final action in favor of the employer’s determination only if the
finding on which the determination is based is supported by evidence that a CWS
is likely to cause an adverse agency impact. Having considered the record before
us, we find that the Employer has met its statutory burden only with respect to
Union Proposal 1. The UNICOR function, which keeps inmates productively occupied
5 days a week, contributes significantly to safety and order at Lompoc. Union
Proposal 1, however, would close the UNICOR facility an additional 26 times a
year. In our view, this clearly would have disruptive effects on inmates,
thereby diminishing the level of service to UNICOR’s public. The Union’s
attempt to minimize the impact of requiring inmates to take an additional day
off every 2 weeks by equating it with the lower staffing levels that exist
during evenings, weekends, and holidays, fails sufficiently to consider the
unique environment of a Federal prison. In these circumstances, we are persuaded
that the importance of maintaining 5-day per week inmate work schedules
outweighs the significant benefits that employees would derive from
participating in CWS under Union Proposal 1.

As to Union Proposal 2, we find that the Employer has not
met its statutory burden because the record does not support a finding that the
proposed CWS is likely to diminish service to the public or reduce productivity.
Under Union Proposal 2, UNICOR operations would continue during all 10 days of
the pay period, thereby avoiding the major defect identified above in connection
with Union Proposal 1. Equally significant, in our view, are the existence of
successful CWSs at the Allenwood UNICOR, and two other UNICOR facilities, which
appear to have been approved by the BOP’s Office of General Counsel. In this
regard, the Employer has not convincingly distinguished its circumstances from
those at Allenwood, where a CWS similar to Union Proposal 2 currently is in
effect. Moreover, many of its arguments seem to confuse administrative
burdensomeness, which Union Proposal 2 would undoubtedly cause if implemented
without further refinement, with the higher standard of adverse agency impact.
For instance, we believe that the exercise of managerial discretion in
regulating leave use and training schedules could ensure staffing does not fall
to the critically low levels upon which the Employer’s direst predictions
appear to be premised. As to the staffing of non-UNICOR posts, the Employer has
not attempted to explain why these duties could not be performed by others when
UNICOR employees are unavailable. Furthermore, the record supports the
conclusion that there are ways to address the Employer’s numerous concerns
pertaining to inmates’ schedules and their access to various support
activities at the institution if the parties are willing to make adjustments so
that the probability of a successful CWS is increased.

We reach the same conclusion regarding the Employer’s
prediction that the implementation of Union Proposal 2 would result in annual
productivity losses amounting to $62,400. Given the many variables affecting
productivity at the facility, without actual experience under a CWS the
projected losses cannot be viewed as anything more than speculative. Nor has the
Employer refuted the Union’s contention that employees can still be
productive, for example, by conducting work area searches, doing paperwork, or
attending production meetings, even if inmates are not present.

Because we find that the Employer has not met its burden
of showing that Union Proposal 2 is likely to cause an adverse agency impact, we
are constrained by the legislative history of the Act to order the parties to
return to the bargaining table for additional negotiations. This is done with
some trepidation, as our experience suggests that the parties have difficulty
engaging in collaborative problem solving. As indicated above, the Employer has
raised some legitimate concerns that, though not rising to the level of
demonstrating adverse agency impact, nevertheless will have to be addressed
during subsequent negotiations if the parties are to avoid another impasse over
this matter, this time under the Federal Service Labor-Management Relations
Statute. The Union, on the other hand, has provided convincing evidence that
affected unit employees solidly support CWS and would do everything in their
power to make it work. Both sides are urged to move beyond narrow considerations
of their rights under the Act(12) and focus on understanding and accommodating one
another’s legitimate interests so that a voluntary settlement may be achieved.

ORDER

Pursuant to the authority vested in it by section 6131 (c)
of the Federal Employees Flexible and Compressed Work Schedules Act, the Federal
Service Impasses Panel, under section 2472.11(a)(1) of its regulations, hereby
orders the Union to withdraw proposal 1 and under § 2472.11(b) of its
regulations, hereby orders the parties to negotiate over Union Proposal 2.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

November 13, 2000

Washington, D.C.

1. Under a 5-4/9 schedule,
employees work eight 9-hour days, one 8-hour day, and have 1 regular day off (RDO)
each pay period.

2.
The informal conference was interrupted half-way through the first day when
participants were required to respond to an inmate disturbance elsewhere at the facility. The conference resumed the next day.

3.
The factories are: the Sign Factory (street and neon signs); the Print Plant
(Government forms and templates); and the Cable
Factory (electronic cable, fiber optics and AF Cables). The Employer also
operates a warehouse, a quality assurance department, and a business office.

4.
On this subject, the Act's legislative history quotes Representative Ferraro as
follows:

If the agency's presentation does not convince the Panel that the
imposition of the particular alternative work schedule at issue would likely
cause an adverse agency impact, the Panel will direct the parties to return to
the bargaining table and to continue negotiations of an alternative work
schedule. 128 CONG. REC. H3, 999 (daily ed. July 12, 1982).

See also Senate Report on S. 2240, 97th Cong., 2d Sess. (1982) which, as subsequently amended with respect to other matters, was enacted into law as the Act. The Senate Report contains the following:

If the Panel finds there is not sufficient evidence to support a conclusion that an adverse impact will occur, it is expected that the Panel will direct the parties to fully negotiate out the particular schedule and not to simply impose it on the agency. S. REP. NO. 97-365, 97th Cong., 2d Sess. 15-16 (1982).

6.Article 18, Section b, provides
that the Office of the General Counsel in the Central Office will review CWS
agreements within 30 days of signing. If the agreement is found
"insufficient from a technical or legal standpoint" the parties may
renegotiate the schedule or exercise statutory appeal rights.

7.Under the Employer's Sign Factory
scenario, on Friday in week 1, staff member # 2 is off, staff member # 3 leaves
at 3 p.m., and another staff member must be assigned to cover the metal
detector. If another employee is away on leave or in training, the ratio of
inmates to staff would rise to 100 to 1. On Friday in week 2, three employees
take their RDO. The same low staffing ratio is predicted to occur. The Employer
states under such circumstances it would close the Sign Factory on those days.

8.The count is essentially a
mandatory roll call to ensure that no inmate has escaped.

9.In addition, during the informal
conference the Union indicated it would be willing to consider a number of
options, including possibly limiting the CWS to the Cable Factory because of the
small size and daily operations of the Print Shop, the Sign Factory, and the
Business Office.

10.The Union proposes moving inmates
some 10 to 30 minutes earlier in the morning and later in the afternoon.

11.At UNICOR Allenwood, employees do
not work a paid lunch; instead they begin 15 minutes earlier and end 15 minutes
later than the Union proposes in the instant case.